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No-Strike Clauses Hold Back Unions

When leaders of the Occupy movement’s most reliable labor ally, the Longshore Union (ILWU), declared the union would not participate in Monday’s shutdown of West Coast ports, they illustrated a great weakness plaguing our unions.

Labor is confined by contract unionism, whose core is the no-strike clause.

Recall that during the 1999 mass protests against the World Trade Organization, the ILWU used its power to shut down all West Coast ports for a day, a stroke of exemplary solidarity.

The decision not to support the current call was influenced by the fact that, like almost all unions that sign collective bargaining agreements, the ILWU is bound by a clause barring strikes during the life of the contract. The last time ILWU supported a shutdown of the Oakland port, it suffered a fine of $65,000.

For more than 75 years, the labor movement has been enclosed by law and custom by collective bargaining, whose goal is to achieve a contract that seals in wages, benefits, a grievance procedure, and work rules. In return, workers and their union agree, crucially, to surrender their right to withhold their labor.

The penalties for violation are often severe: stiff fines and imprisonment of union officials. After the three-day walkout by New York City transit workers in 2005, a court order barred check-off of union dues, levied $2.5 million in penalties, and handed the union president a 10-day jail sentence.

Even when unionists and their allies flooded Madison, Wisconsin, last winter with huge protests, there was little debate about the limits of contract unionism.

HOLD US BACK

Why do contracts hold back unions?

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1. The contract has the force of law. It is a compromise between labor and the employer, private or public. The workers agree to suspend most of their demands for as long as the contract lasts. In the past decade that period has grown, sometimes to as much as six years. Even if conditions change, the union cannot reopen the contract unless the employer consents.

2. The union is responsible for enforcing the contract, including disciplining the workers. Of course, management regularly bypasses or brazenly violates the contract. To remedy these infractions, the union can grieve and finally arbitrate. Although arbitration is heavily weighted on the employers’ side, workers have no other recourse, under the law of the contract.

If they (rarely, these days) resort to a wildcat walkout or other job action, their union is obliged to renounce the strike and “order” workers back to the job.

3. Under these conditions, the union tends to become conservative, at best, or, at worst, an agent of shop floor workers’ subordination. The weight of the law mostly prevails.

With the employers’ offensive of the last generation, collective bargaining is now mostly a form of collective begging. Yet collective bargaining remains a sacred cow. Few are willing to advocate that, at the minimum, contracts leave the strike weapon unrestricted.

The labor movement has forgotten its own traditions: Until the 1930s, labor contracts were fairly rare. Workers—and not only IWW members—used to fight for their demands continuously and agree to return to work only when they were met.

Skeptics ask why employers should sign contracts if they cannot buy labor peace. But European unions do not, typically, agree to limitations on strikes.

The main factor underlying labor relations is the power of workers and their unions. Until they re-examine the trap of collective bargaining, the downward slide will accelerate.

Stanley Aronowitz teaches sociology at the City University of New York.

Comments

Labor Notes’ January and February debate on the stifling effects of no-strike clauses, and of contracts in general, has missed an even more important inhibiting factor: acceptance of management rights.

The ideology and practice of management rights keep unions on the sidelines as decisions are made that hurt not only members but also the union’s power.

Management rights clauses and longer-term contracts arrived in the late ’40s, just as the ideology of unionism narrowed to only providing good wages and benefits, standardized work conditions, and discipline proceedings. Those with a broader view of struggle and solidarity were called communists, and ejected.

As unionism narrowed, stewards were transformed from shop-floor organizers to quasi-lawyers who represent members in judicial proceedings, limited by the contract and the acceptance of management’s prerogatives.

As a steward, I was told that when a member came to me, I should look in the contract for a violation. If there was none, I was left with a relatively empty toolbox.

But contract violations are not the biggest problem we face. Changes made under management rights are eliminating jobs and making work life unbearable for those who remain. Automation, intrusive monitoring systems, “lean” work organization, and “blame-the-worker” safety programs threaten not only jobs and working conditions but also traditional sources of union strength: skill and solidarity.

These encroachments overwhelm the union’s ability to protect members with grievances. Very few contracts, for example, have GPS clauses a steward can cite, while monitoring is increasing everywhere. The narrow focus on contract enforcement leaves us less able to win the struggles that arise at contract time.

This downward spiral is the legacy of management rights.

The European unions are different: they reject the ideology of management rights and have insisted on inserting the union into decisions about the future of work.

I agree with Stanley. The no strike clause is killing the labor movement, but then again so is all the labor law. Collective bargaining is a trap. So we need new labor law? Maybe we just need a different way of organizing society and an economy that works for workers. I'm for militant general strikes as a way to start the ball rolling. Most of my union brothers and sisters aren't willing to take the risk. They don't want to lose what they have now. Of course we all (most of the 99%) are loosing what we have anyway. It's only a matter of time until the bosses push conditions back to 19th century capitalism. Sooner or later we will have to take the risk and fight. Perhaps the Occupy movement will be the vehicle for real social change. I'm involved, and I'm trying to get more union people active in it. Time will tell.

I'm not a soc-dem by any stretch. I'm simply pointing out that collective bargaining is merely a form of dispute resolution in civil law. I didn't express fondness for labour courts, either, just that my proposal would be a step further up from collective bargaining representation as a sort of "public option."

Finally, I'm not naive at all. In fact, a very early example of the exposition of the anti-worker nature of the modern state’s core functions with regards to collective bargaining was demonstrated in imperial Russia, as noted in June 2010 by Lars Lih:

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Zubatov was a tsarist police official who, around 1900, had the brilliant idea of beating the Social Democrats at their own game. Remember that not only political parties but even trade unions were illegal before the 1905 revolution. Zubatov’s idea was that the police themselves would set up semi-legal trade unions so that workers could pursue their economic struggle in a peaceful way, while still remaining loyal, even grateful, to the tsar […] Now, if Lenin thought that workers were naturally reformist, one would think that he’d be pretty worried about these police unions, since the tsarist government was trying to show it could genuinely carry out needed reforms.

In fact, Lenin’s attitude was very brash – indeed, it could be summed up as “Bring it on!” According to Lenin, these police unions were good for the revolutionary underground in every way. For one thing, the police took over the job of providing legal workers’ literature, so that the underground could concentrate on smuggling in the stronger stuff. For another thing, there was no chance that the workers would be taken in for any length of time by the anti-democratic, anti-revolutionary message of Zubatov and his minions – of course, assuming that the Social Democrats did their job of vigorously refuting Zubatov’s message […] In January 1905, a follower of Zubatov, Father Gapon, led the workers to present a loyal, peaceful petition to the tsar, and they were shot down by the government on Bloody Sunday, January 1905, leading to a radicalisation of large sectors of the working class.
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Would you rather have the same old parochial yellow unions with no interests in organizing the working-class elements of the so-called "precariat"?

Having government handle contract bargaining would be a major step backward, not forward. Unions need to become fighting organizations for working class protection. Contracts get in the way of this, and it's not just because union bureaucracies spend so much time dealing with them(powerful bureaucracies only exist because of contracts anyhow).

Maybe that is taking Stanley's ideas to their logical conclusion. but, mainly I want government out of unions. Call me an anarcho-syndicalist, but it's the pragmatic route to take.

You just contradicted yourself. Contracts and collective bargaining, you said, get in the way, but if unions get out of negotiations, mediations, and so on for wages, employer benefits, working conditions, etc. then who's going to step in? I'm taking the logic of this article to a logical conclusion, and the state aid also helps currently non-unionized workers.

I think the author of this article has a more radical vision of unionism than the old social-democratic type. Looking at the remains of social-democracy in Europe I see nothing inspiring or worthwhile from any "labor court". Although, I am always impressed by the fighting spirit of Europe's working class.

Looking back, the social-democratic era has been a disappointment and it's decline was inevitable. The answer is not for America to go backward into a type of society whose time has long since past. It is very naive of the person who made the comment below to think that "wholesale absorption of all private-sector collective bargaining representation into... independent government agencies acting in good faith" is possible, or even desirable! In fact, such a prospect is just downright absurd and wrong!

How would( in essence) handing over the already bloated and corrupt union bureaucracies to an even larger, centralized, government controlled bureaucracy empower the working class? It would most certainly have the opposite effect. Sounds like the pie-cards wet-dream and nothing more, I wouldn't want such a vision in my labor movement. Stanley Aronowitz has made a great case against no-strike clauses and perhaps even collective bargaining contracts as we know them, I am very glad and excited to see labor notes publishing such articles!

The immediate solution is more political than at the level of the union. What follows next is more than a mouthful.

What is to be learned from these trends is that the collective bargaining function itself, except perhaps where there are no union representatives, goes against politico-ideological independence for the working class. Amongst the various forms of dispute resolution in civil law – negotiation, mediation, arbitration, and litigation – tred-iunion careerists perform not just negotiation on the formal behalf of employees, but also (and in practice) mediation between employers and employees.

In the post-WWII era, social-democrats were keen on the public policy of universal unionization. However, with the plethora of agency shops today, what should be pursued here is the wholesale absorption of all private-sector collective bargaining representation into free and universal legal services by independent government agencies acting in good faith (and subjecting their employees to full-time compensation being at or slightly lower than the median equivalent for professional and other skilled workers). Significant parts of the administrative apparatus required for the complete provision of labour dispute resolution by such agencies and their plethora of lawyers are already in place in the more developed countries, and happen to be called “labour courts” or “labour relations boards.” Public-sector collective bargaining is not addressed, given the sensitivity of public-sector workers towards their government employers.

Beyond crude calls for universal unionization, it should be noted that the collective bargaining function as a whole is different from the strike function, the latter of which should naturally remain the function of whatever unions remain, the real militant unions.